The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities
Lord, Janet E., Stein, Michael Ashley, Washington Law Review
Abstract: This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic law and process reflect important dimensions of international law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms.
The United Nations adopted the Convention on the Rights of Persons with Disabilities (CRPD or Convention)1 along with its Optional Protocol2 by general consensus on December 13, 2006.3 The CRPD opened for signature by States Parties on March 30, 2007, and a vast majority of States signed it soon thereafter. It attained the requisite twenty ratifications to trigger entry into force on May 3, 2008. 4
As the first human rights treaty of the twenty-first century, as well as the first legally enforceable United Nations instrument specifically directed at the rights of persons with disabilities, the Convention ushers in a new era of international human rights law and practice.5 Fewer than fifty States Parties have any sort of systemic disability legislation,6 and many of those are in need of drastic revision.7 In addition, the Convention mandates that its monitoring Committee review measures taken by States Parties to incorporate the treaty's obligations into domestic legal frameworks.8 States Parties are obligated to undertake a wide range of national-level implementation measures (some familiar to human rights treaties, and others reflecting obligations more frequently found in other international law contexts), in order to give full effect to the CRPD provisions.9 Consequently, the CRPD initiates an unprecedented opportunity for domestic law, policy reform, and genesis on behalf of the globe's "largest minority."10
This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification or incorporation.11 Specifically, we consider the transformative vision of the CRPD as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy and draw conclusions that bear more generally upon human rights practice and scholarship.12
Part I of this Article explains the processes influencing domestic incorporation of the CRPD. Next, Part II examines ways the Convention seeks to transform the respective domestic laws - and social processes-of States Parties. Finally, Part III explores some of the challenges faced by States Parties in adopting the CRPD into domestic legal regimes and in achieving the transformative social change envisioned by the Convention drafters.
I. PROCESSES OF DOMESTIC INCORPORATION
It is axiomatic that international human rights standards are implemented domestically,13 and are intended to take root through processes of domestic incorporation.14 Human rights treaties reflect this most basic idea in provisions that create obligations at the international level to be given effect at the domestic level, thereby ensuring meaningful translation of international norms into national-level action. …